The Mechanism Research Of Conflict And Solution Between Folk Law And State Law

The study of civil law was inspired from Western legal sociology and legal anthropology.Legal sociology and legal anthropology have breakthrough law unitary pattern and provide aprofound theoretical basis for the study of civil law. With the transformation of our societyand the construction of the rule of law, state law also gradually exposed some shortcomings,such as lag, dogmatic, and divorced from reality, which prompted the research vision of thenative legal scholars transferred from the West to China, seeking the advantage of localresources to compensate for the defects of the national law.China’s civil law study began innineteen nineties, scholars of the folk law research mainly focused on folk law and state law,the folk law and the relationship between Chinese traditional culture and social transitionproblem of civil law in the modern society, the operational mechanism, civil law judicialfunction and to the customary law of the Minorities Research and on the theories ofcommunity research. The popular statement of Folk law is the general designation of folkcustoms, customs, ethics, chapter system, etiquette, is a large aggregate of the social norms.Its value lies in the make up of the national law, as well as the transformation to the state law.The antithesis of civil law is state law and the contrariety and unity of civil law and statelaw makes them inseparable. Therefore, Construction of the harmonious mechanism of themis the focus of this study. The conflict of the civil law and state law in the of criminal andcivil fields, including three cases： The first case exists in the criminal field, civil law andstate law conflict because the civil law beyond its jurisdiction, violated the authority of thestate law, constitute a threat to basic human rights, so in this case civil law should be absolutecompliance with state law requirements; The second situation exists in the field of civil, civillaw and state law both have the provisions, but there are conflicts in the practical application,the field of civil was a field of private law autonomy, therefore, it would be a good way torespect the opinions of the parties, and to carry out a modest adjustment of the civil law andthe state law to resolve conflicts; The third case mainly about the field of civil, if the blank ofstate law is defined in civil law, the civil law should be taken as the ruler to solve the dispute. Careful study of causes of the conflict between civil law and state law shown that deeplyroots can be found from the historical, cultural and social situation. Differences in the Chinalegal culture and Western law thoughts, conflict of human justice concept in China and theWest contract justice, contradictions of the local differences and the national unity, andunfitness of supply of national laws and civil needs, have caused conflicts between civil lawand state law.Although the conflict between civil law and state law is more than thecombination of relations, The purpose of the study of conflict of civil law and state law isconstruction of a reasonable system including state law and civil law together in harmony andprovides excellent resources together to build a socialist society under the rule of law. Due tothe consistency in the value pursuit of the fairness and justice, historical experience of the risefrom civil law to national law and complementarities in implementation manners of civil lawand state law, Civil law and state law can be effectively combined. The combination formof civil law and state law mainly including state law absorb the good folk law and civil lawrecognized by state law. Civil law should be treated in objective way without blindly obeyand totally deny, should be permitted to coexist and complement with state law in certainconditions, times and spaces. In construction of harmonious system of national law and civillaw, the author discussed four aspects including legislation, law enforcement, judicial,law-abiding. in legislation aspect，Legislators should have an objective understanding of thecivil law and the democratic and affinity of the legislation, while through the research absorbthe outstanding civil law, annulled the foolish and unreasonable civil law, to do a clean-upand pledge allegiance work to civil law. in enforcement aspect，in view of the case ofenforcement process faced civil law resistance and discusses the construction of the feedbackmechanism; in judicial aspect, Standing in the judge’s point of view, to give the power tojudges of using civil law,at the same time, pay attention to prevention of the expansion ofjudicial corruption and power so as to establish a judicial serve for people heart and soulconcept as a means to build the harmony of the civil law and state law; Finally, the educationof national law should be vigorously carry out, while comparing the difference of the civillaw and state law to give the citizens a special channel of appeal, the enlightenment way of democracy and rights awareness, building the most basic and most important popular base forthe construction of the legal society.